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New Angle Pet Products, Inc. v. Macwillie's Golf Products

June 28, 2007

NEW ANGLE PET PRODUCTS, INC., PLAINTIFF,
v.
MACWILLIE'S GOLF PRODUCTS, INC. D/B/A PETCREW, DEFENDANT.



The opinion of the court was delivered by: Hurley, Senior District Judge:

MEMORANDUM & ORDER

INTRODUCTION

Plaintiff New Angle Pet Products, Inc. ("Plaintiff") brings this suit against MacWillie's Golf Products, Inc. d/b/a Petcrew ("Defendant") alleging false advertising under United States trademark law. Defendant move to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(2). For the reasons that follow, Defendant's motion is denied.

BACKGROUND

Unless otherwise indicated, the Court derives the following factual summary from the Amended Complaint and affidavits submitted by the parties.

Plaintiff is a corporation organized under the laws of New York, with its principal place of business in Great Neck, New York. Since approximately August 2000, Plaintiff has had the exclusive rights to promote and sell portable pet water dispensers incorporating the following design: "a hinged attachment of a bottle to a water pan which allows attached pivoting of the water pan relative to the bottle so that the water pan may be hinged, i.e. 'flipped down', to initiate use." (Am. Compl. ¶ 5.) Plaintiff has sold such a portable pet water dispenser under the trademark "Gulpy" since approximately April 2001.

Defendant is a corporation organized under the laws of California with a principal place of business in Los Angeles, California. Defendant sells a product line known as "Handi-Drink" which does not have an attached hinged water pan. Instead, Defendant's product has a detachable water pan that must be completely removed from the bottle and then reattached.

According to Plaintiff, Defendant operates two websites -- www.handi-drink.com and www.petcrew.net -- which permit viewers to order Defendant's advertised pet products online. Plaintiff alleges that the websites' instructions on the use of the Handi-Drink begin with the phrase: "Simply extend the water pan . . . ." (Am. Compl. ¶ 8.) Plaintiff also alleges that the websites contain "'unsolicited accolades'", including one which references Defendant's product as "'the flip-down water pan.'" (Id.) Plaintiff claims that the statements contained on Defendant's website advertisements are false and misleading in that they cause the general public to believe that Defendant's product contains the attached hinged water pan found in Plaintiff's Gulpy. As a result, Plaintiff alleges that it "has suffered loss of sales and lost customers in the New York market due to Defendant's false advertising on its Internet websites." (Decl. of Lawrence I. Wechsler, dated Aug. 16, 2006 ("Wechsler Dec."), ¶ 14.)

It is undisputed that Defendant has no physical presence in New York. Plaintiff has submitted the declaration of its President, however, who alleges on information and belief that Defendant sells pet products, including the Handi-Drink product, to All Pet Distributors, Inc. located in Brentwood, New York. (Wechsler Decl. ¶ 7.) This distributor in turn supplies Defendant's pet products to Petland Discounts, Inc., which operates a chain of over 110 retail pet stores in New York. (Id.) Plaintiff's President also claims, on information and belief, that Defendant sells products to C & K Distributors, located in Glendale, New York, which supplies Defendant's pet products to numerous retail pet stores in New York. (Id. ¶ 8.) Finally, Plaintiff's President contends that Defendant solicits sales of its pet products, including the Handi-Drink product, through advertisements in trade publications such as Pet Product News International, Pet Age, and Pet Business, each of which have national circulation, including a substantial circulation in New York. (Id. ¶ 12.)

Defendant contends that its contacts with New York are as follows: At most, from its California facility, [Defendant] has filled limited orders for the "Handi-Drink" submitted by New Yorkers to [Defendant] in California. The total gross sum of such orders since the alleged initiation of sales of "Handi-[D]rink" in June 2005 is approximately $8,000 and includes only two Internet sales consisting of a total of $32.97. (Def.'s Mem. at 3 (citation omitted).)

Defendant has moved to dismiss the Amended Complaint on the ground that the Court lacks personal jurisdiction over it. Plaintiff asserts that personal jurisdiction is proper under sections 302(a)(1), 302(a)(3)(i) and 302(a)(3)(ii) of New York's long arm statute. Because the Court finds jurisdiction proper under section 302(a)(1), Defendant's motion to dismiss for lack of personal jurisdiction is denied.

DISCUSSION

I. Rule 12(b)(2) Standard

When served with a Rule 12(b)(2) motion, the plaintiff bears the burden of establishing that a court has personal jurisdiction over a defendant. See Whitaker v. American Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001). Prior to discovery, a plaintiff may carry this burden "'by pleading in good faith . . . legally sufficient allegations of jurisdiction,' i.e., by making a 'prima facie showing' of jurisdiction." Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 184 (2d Cir. 1998) (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990)). "A plaintiff can make this showing through his own affidavits and supporting materials containing an averment of facts that, if credited, would suffice to establish jurisdiction over the defendant." Whitaker, 261 F.3d at 208 (citations and internal quotation marks omitted). "Where ...


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